Labour Disputes
Texto da decisão
REF. FPSD-8496
Decision of the
Dispute Resolution Chamber
passed on 11 May 2023
regarding an employment-related dispute concerning the player Alison
Ferreira Lopes
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Stella Maris Juncos (Argentina), Member
Alejandro Atilio Taraborrelli (Argentina & Italy), Member
CLAIMANT / COUNTER-RESPONDENT:
Alison Lopes Ferreira, Brazil
Represented by Tannuri Ribeiro Advogados
RESPONDENT / COUNTERCLAIMANT:
Al Hazem, Saudi Arabia
Represented by R&A Sports Law
INTERVENING PARTY:
Santos FC, Brazil
Represented by CCLA Advogados
pg. 2
REF. FPSD-8496
I. Parties
1.
The parties to the dispute at hand are:
a. the Brazilian player, Alison Lopes Ferreira (hereinafter: the player or the Claimant /
Counter-Respondent 1);
b. the Saudi club, Al Hazem Sport Club (hereinafter: Al Hazem or the Respondent /
Counterclaimant); and
c. the Brazilian club, Santos Futebol Clube (hereinafter: Santos or the CounterRespondent 2).
II. Facts of the case
2.
On an unspecified date, the player and Santos initiated an employment relationship.
3.
On 3 August 2021, the player, Santos, and Al Hazem, concluded a transfer agreement by
means of which the player’s registration was permanently transferred from Santos to Al
Hazem as from 1 August 2021. According to such transfer agreement, Al Hazem
undertook to pay Santos a transfer fee of USD 700,000, in 2 instalments of USD 350,000
each, payable respectively on 27 August 2021 and on 15 December 2021.
4.
On 5 August 2021, the player and Al Hazem concluded an employment contract, valid as
from 1 August 2021 until 30 June 2023 (hereinafter: the Contract).
5.
As per the Contract, Al Hazem undertook to pay to the player inter alia the following
concepts:
a. USD 600,000 net due as fixed financial payments as follows:
i.
ii.
iii.
iv.
v.
vi.
USD 100,000 due on 30 August 2021;
USD 100,000 due on 30 October 2021;
USD 100,000 due on 30 December 2021;
USD 100,000 due on 30 August 2022;
USD 100,000 due on 30 October 2022; and
USD 100,000 due on 30 December 2022.
b. USD 1,300,000 net as salaries payable in instalments by the last day of each
month, as follows:
i. USD 54,545 during the 2021-2022 season; and
ii. USD 58,333 during the 2022-2023 season.
pg. 3
REF. FPSD-8496
c. Housing;
d. A car for personal use of the player; and
e. “Arline tickets (business class) per season, for the player, his wife and his kid”.
6.
Clause 7, par. 14 of the Contract reads as follows:
“The player shall allow himself to be treated by a doctor / physiotherapist / chiropractor
designated by the club. Nevertheless, the player shall have the right to a second opinion
by an independent medical specialist of his choice if he contests the opinion of the club’s
doctor / physiotherapist / chiropractor. If there are still different opinions, the player and
the club agree on accepting an independent third opinion (e.g. from a FIFA Medical Centre
of Excellence), which will be binding on both parties. The costs of any such third
independent opinion will be covered by the club.”
7.
Clause 7, par. 19 and 20 of the Contract read as follows:
“The player shall:
[…]
19. Comply with the sanctions and rewards internal regulations of the club which the
club is entitled to impose according to the club internal regulation or to the regulation
named “Typical List of Penalties and Sanctions for the Clubs that apply Professionalism”
issued by SAFF (SAFF TLPS), a copy of which is shown and provided to the Player, being
his signature of this Contract a sign of its receipt;
20. Commitment to the list of violations and penalties issued by the club and the Saudi
Football Association, and based on the model list prepared by the Saudi Federation,
where a copy of it was submitted with this contract to the Player for review”.
8.
Clause 8, par. 5, 6 and 7 of the Contract read as follows:
“5. The club shall not impose a fine on the player if the club has not complied with its
own financial obligations towards the player under the terms and conditions of this
contract.
6. In choosing and levying a sanction, the club shall take into account all circumstances
of the case. The club shall notify the player in writing at least 14 days prior to the hearing.
The player may be represented in disciplinary proceedings by a person (of any
nationality) authorised by the player for that purpose.
7. The club recognises that if the sanction consists of a fine, and such fine is deducted by
pg. 4
REF. FPSD-8496
the club from the player’s salary, the player is entitled to file a claim at the FIFA DRC to
assess the legitimacy of the fine”.
9.
Clause 12, par. 3 of the Contract reads as follows:
“The Club shall not terminate the contract due to the Player sustaining an injury during
the play or training.”
10.
Clause 12 par. 8 of the Contract reads as follows:
“In case the club relegated to a lower league, the club has the right to transfer (sell) or
terminate the contract without any penalty clause.”
11.
On 15 December 2021, Al Hazem failed to pay Santos the 2nd instalment of the transfer
fee due on 15 December 2021 in the amount of USD 350,000. Contextually, Santos lodged
a claim against Al Hazem before the Football Tribunal, which was filed under ref. no. FPSD6019.
12.
On 30 December 2021, Al Hazem failed to pay the player the 3rd instalment of the sign-on
fee in the amount of USD 100,000 due on 30 December 2021.
13.
On 18 March 2022, during a match against Al-Ittihad Club valid for the Saudi Pro League,
the player suffered a knee ligament injury.
14.
On 21 March 2022, the player’s lawyer contacted Al Hazem regarding the player’s injury,
requesting authorisation for him to travel to Brazil immediately in order to get a second
opinion by a doctor of his choice, namely Mr José Ricardo Pécora (hereinafter: Mr Pécora).
15.
Also on 21 March 2022, Al Hazem replied to the aforementioned letter stating that “first
and foremost we consider the content of your correspondence as inacceptable and
disrespectful towards our club and the medical competence in our country Saudi Arabia”. In
addition, Al Hazem informed that a second medical examination was scheduled for 23
March 2022 at a hospital, together with its medical staff, followed by surgery planned for
24 March 2022. Al Hazem insisted that the player would receive the best medical care in
Saudi Arabia and refused “any travel to seek treatment elsewhere.”
16.
In spite of the above, on 22 March 2022, Al Hazem contacted the player stating that it did
not object to the player having a second opinion and suggesting that the entire medical
report be forwarded to the specialist of his choosing. Al Hazem also informed the player
that it would reschedule the surgery intervention until the player got his second opinion
and requested him to provide the email address of Mr Pécora. Finally, the club stated that
“we hardly remind you that this type of injury doesn’t need any clinical examination and only
the medical RMI report is decisive and hence there is no need to travel to Brazil to get the
second opinion. After the second opinion, the player will get all the medical treatments in Saudi
pg. 5
REF. FPSD-8496
Arabia under the control of the club’s medical staff and no medical act whatsoever will be made
outside Saudi Arabia.”
17.
Also on 22 March 2022, the player replied to Al Hazem, providing it with the contacts of
Mr Pécora and reinforcing the need for an appointment in person with his doctor. He also
stated that Mr Pécora and Mr Salem Al Zahrani (i.e., the club’s doctor) would most likely
find an agreement as to where the surgery should take place; as well as in case of
disagreement, the Contract clearly stipulates what the next steps were.
18.
On 23 March 2022, Al Hazem once again contacted the player confirming that his medical
report would be forwarded to Mr Pécora. Al Hazem further stated that “In the other hand,
the contract provide that the club will be responsible for all medical expenses and we draw
your attention that [the club] has invested a lot to contract with the best surgeons and clinical
as well as the best rehabilitation centres to guarantee to its player the best conditions in case
on injury and consequently it is undebatable that the surgery or recovery process will be made
outside [sic] Saudi Arabia.”
19.
Also on 23 March 2022, Al Hazem sent the player another email in which it confirmed
having been informed by the player about his travel plans to Brazil to obtain a second
opinion. The club suggested that the need for urgent surgery has not been established
and that the player should respect the Contract and return to Saudi Arabia for surgery
and treatment. Finally, Al Hazem stated that “In ultimate act of good faith from our side we
ask you to send the exact date of the appointment with the Brazilian doctor and we will book
a flight ticket for only five days authorization including the two days of travelling and we
prevent the player from now that no reason will be acceptable to stay in Brazil and that he has
to be return to Saudi Arabia according to the return date.”
20.
Also on 23 March 2022, the player replied to Al Hazem, reiterating the need for a
consultation in person with Mr Pécora and informing that he would travel to Brazil as soon
as possible to pass a consultation with him “whatsoever the scenario”.
21.
On 26 March 2022, the player wrote to Al Hazem, stating that “In line with our
understanding, we kindly request you to provide the necessary flight tickets to Mr. Alison Lopes
Ferreira (‘Player’) and his family travel to Brazil asap.”
22.
Also on 26 March 2022, Al Hazem contacted the player, stating inter alia that “Your client
has discussed with Mr. Fahad Alayed CEO of the club the modalities of his travel to Brazil. In
your email you didn't give the details of the travel contrary to the whatsapp discussion between
the Player and the CEO. That's why the club has requested from your side the confirmation of
the details of the travel”.
23.
On 27 March 2022, the player replied to the last correspondence of Al Hazem stating that:
“Ok. No problem. The important is that it is all settled now.”
pg. 6
REF. FPSD-8496
24.
On 27 March 2022, Al Hazem provided the player and his family with flight tickets to Brazil,
leaving on 30 March 2022 and returning to Saudi Arabia on 5 April 2022.
25.
On 2 April 2022, Mr Pécora wrote to Al Hazem confirming the need of surgery and advising
the convenience of performing such surgery and treatment in Brazil, as he was acquainted
with the player’s medical history and as the player would be close to his family.
26.
On 3 April 2022, Al Hazem informed the player that the latter had failed to provide any
update regarding his appointment with Mr Pécora in Brazil and drew his attention to the
fact that “your return flight is scheduled on 4 April 2022 and you will find our driver in the
airport at your arriving to [R]iyadh airport”.
27.
On 4 April 2022, the player replied to Al Hazem stating there must have been a
misunderstanding as Mr Pécora had contacted it on 2 April 2022.
28.
On the same day, Al Hazem informed the player that its main doctor was on holidays and
therefore failed to forward them the email received from Mr Pécora. Al Hazem also
indicated that “regarding the proposal of the player’s doctor that the treatment will be carried
out in Brazil: […] the content of the email of the player’s doctor shows the bad faith of the player
who planned that scenario (our email of 23 Mars 2022) and […] such scenario is unacceptable.
Additionally, the club’s CEO informed the player that the club will support all expenses
regarding the flight tickets and the accommodation of his family but Alison insisted to return
alone to Saudi Arabia and once again we reiterate our engagement to support all expenses in
order to permit the stay of the player’s family with him in Saudi Arabia. We are really
disappointed that the player starts to execute what he has planned and discussed with the
sport’s director (that he will find any argument to stay in Brazil and not return in Saudi Arabia).
[…] We give notice to the player to take the flight of today in order to return to Saudi Arabia
where the surgery and the treatment will be carried out as previously planned. We reserve our
rights to apply the disciplinary measures in case the player’s refusal to take the flight of 4th
April 2022 according to the disciplinary regulation and FIFA RSTP”.
29.
On 5 April 2022, the player replied to Al Hazem, stating inter alia the reasons why Mr
Pécora was the best one suited to conduct the surgery and subsequent rehabilitation,
pointing out the near end of the Saudi Pro League – following which all players and staff
would go on annual holidays – as well as the approaching start of the Ramadan. The player
further indicated the willingness of Mr Pécora to do a video recording of the surgery and
to share the latter as well as the monthly reports on the rehabilitation with Al Hazem.
30.
On 6 April 2022, Al Hazem reverted to the player, highlighting its dissatisfaction with his
behaviour, notably, the insistence to remain in Brazil, and requested him to be present at
its premises on 9 April 2022, while reserving its right to impose disciplinary sanctions or
terminate the employment relationship unilaterally with just cause. Al Hazem also
reminded the player of the efforts made by it to provide him with the best medical care
pg. 7
REF. FPSD-8496
in Saudi Arabia, as well as of its relegation in the national league, and the need to reduce
its foreign players quota from 7 to 4.
31.
On the same day, the player replied to Al Hazem denying its accusations and reiterating
his decision to go through surgery in Brazil. Inter alia the player stated that “[…] the Club
requests the return of the Player to pass through a medical surgery and treatment in Saudi
Arabia, but it never rebutted the arguments above. What is more, my previous statement that
the current season is about to end, that the Club management and staff will be soon on
holidays, as well as that currently is Ramadan evidently had no intention whatsoever to
disrespect anyone but simply drive its attention to elements, which certainly must be taken into
account whether considering the best place for the medical surgery and recovering of the
Player. In fact, the insistence to oblige the Player to return to Saudi Arabia despite of the
adversary scenario referred above is honestly not clear but it is looking like that the Club is –
under outraged bad faith – trying to forge a scenario, which would eventually and somehow
grant it a valid reason to terminate their employment contract unilaterally. Assuming it is true,
such sort of conduct from the Club is abusive and certainly unacceptable, in particular, whether
considering the specificities the matter at hand”.
32.
On 8 April 2022, Al Hazem informed the player that it had “not received any feedback from
the player regarding his trip to Saudi Arabia within the deadline indicated in our email of April
6, 2022” and requested him to inform it of his travel plans to Saudi Arabia.
33.
On 9 April 2022, the player reiterated his position to undergo surgery and treatment in
Brazil. The surgery would take place on 18 April 2022. He reinforced that the Saudi season
2021/2022 was about to end and the staff holidays about to begin. The player also put Al
Hazem in default of payment of the 2nd instalment of his sign-on fee, requesting its
payment “as soon as possible”.
34.
On 12 April 2022, Al Hazem acknowledged the player’s failure to return to Saudi Arabia
within the given deadline. It also informed the player that his surgery was scheduled for
16 April 2022 in Riyadh and requested him to be present at the indicated clinic on 15 April
2022. Al Hazem further reiterated its right to take necessary measures against the latter,
notably, to terminate the Contract.
35.
On the same day, the player reiterated his decision to go through surgery on 18 April 2022
in Brazil, explaining he was willing to bear the expenses relating to such surgery to obtain
the best medical care. He also pointed out that there was no contractual breach on his
part and that the club was not entitled to terminate the Contract with just cause. On the
contrary, he claimed that this kind of abusive conduct from Al Hazem would entitle him
to terminate the Contract with just cause, in line with art. 14 of the FIFA Regulations on
the Status and Transfer of Players (RSTP).
pg. 8
REF. FPSD-8496
36.
On 19 April 2022, Al Hazem communicated to the player its decision to impose him a
disciplinary penalty, namely, a discount of 15% of the monthly salary for April 2022, due
to unauthorized absence.
37.
On 22 April 2022, Al Hazem forwarded the player his recovery program. Al Hazem warned
the player that his continued absence would be “sanctioned according to disciplinary
regulation.”
38.
On 22 April 2022, the player replied to Al Hazem, inter alia recounting all the facts of the
case, and pointing out that part of his sign-on fee was outstanding since 31 December
2021. The player also contested the disciplinary sanction imposed on him and pointed out
the bad faith of Al Hazem. While insisting that the treatment should be carried out in
Brazil, he emphasised his good faith in accepting to bear the medical costs. He requested
that the disciplinary sanction be set aside in full, for absence of any legal grounds. Finally,
the player granted the club 15 days to pay the partial sign-on fee amounting to USD
100,000, failing which he would terminate the Contract unilaterally with just cause.
39.
On 25 April 2022, Al Hazem rejected the player’s version of the facts and insisted on the
sanction imposed on him. Al Hazem further explained that the player received his salary
of March 2022 and that he would soon receive the pending USD 100,000, while pointing
out that such late payment would not entitle him to make use of art. 14bis of the FIFA
RSTP, as the amount outstanding does not exceed 2 monthly salaries. Additionally, Al
Hazem reminded the player of its obligation to reduce the quota of foreign players from
[sic] “7 to 5”, which allegedly gave it legal grounds to terminate the Contract; “but Al Hazem
cares about its player and accepts the risk of starting the championship with 4 foreign players
until the recovery of your client who is an important element in the group and on which the
club has invested a lot”. Finally, Al Hazem stated that his presence at its premises was not
only required for training, but also for the official medical program arranged for him; thus,
Al Hazem acknowledged that he was currently absent without authorisation and gave him
a final deadline until 29 April 2022 to return to Saudi Arabia, failing which it would proceed
with the termination of the Contract with just cause.
40.
On 26 April 2022, the player rejected Al Hazem’s accusations and insisted on carrying out
his medical treatment in Brazil. He pointed out that part of his sign-on fee remained
outstanding, which entitled him to deny performance of the Contract. Furthermore, he
reminded Al Hazem of the severe risks of taking an 18-hour flight after a knee-surgery. He
insisted that he would not miss any important training session or match, which could
justify the obligation to immediately return to Saudi Arabia.
41.
On 29 April 2022, Al Hazem notified the player that, due to his “absence from the recovery
program staring on 23 April 2022 and continued absence on 24, 25, 26, 27, 28, 29 April 2022
until now […] And according to the list of violations and penalties provided by the disciplinary
regulation especially point A-1 (irregularities of absence), it has been decided to deduct (30%)
from your salary of April 2022”.
pg. 9
REF. FPSD-8496
42.
Also on 29 April 2022, Al Hazem unilaterally terminated the Contract with the player with
immediate effect, while also attaching proof of payment of his salary for April 2022 after
the deduction of the disciplinary sanctions imposed on him (hereinafter: the Termination
Letter). In particular, Al Hazem stated that: “Al Hazem has showed all the necessary intention
to keep you with the group and preserve the contractual relationship by:
• Not activating the option inserted in article 12-8 of the contract.
• Authorizing your travel to Brazil.
• By imposing only a fine for your absence.
• Summoning you many times to return and start your recovery post-surgery in Saudi
Arabia with the conventional clinic.
In counterpart to all the club’s effort you acted with a bad faith by premeditating your
stay in Brazil for the surgery and recovery. Obviously, the continuation of the contractual
relationship becomes impossible due to your bad faith and your continual infringements
to your contractual obligations.”
43.
On 24 August 2022, Al Hazem paid to the player the USD 100,000 due on 31 December
2021.
44.
On 9 February 2023, the player and Santos entered into a new employment agreement,
valid as from 10 February 2023 until 31 December 2023, as per which the club undertook
to pay the player a monthly remuneration of BRL 100,000.
III. Proceedings before FIFA
45.
On 6 December 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Claim of the player
46.
Initially, the player recalled the factual background of the dispute, in particular:
•
Al Hazem failed to pay Santos two instalments of his transfer fee;
•
Al Hazem’s sportive performance in the 2021/2022 season was very poor, resulting
in its relegation from the Saudi Pro League to the Saudi First Division in March 2022.
•
Due to its relegation and in line with the regulations of the Saudi First Division, Al
Hazem would have to reduce its quota of foreigner players and would also receive
less financial support from the Ministry of Sports.
pg. 10
REF. FPSD-8496
•
Under these conditions and considering that the registration period in the Brazilian
Football Confederation (CBF) would close on 12 April 2022, Al Hazem, the player,
and Santos were negotiating his return to the latter as well as the termination of the
Contract with the player.
47.
The player further explained that while the negotiations with Santos were ongoing, the
player suffered a ligament injury, ceasing the exchanges regarding his potential return to
Brazil. After the need for surgery was confirmed by Al Hazem’s medical staff, the player
explained that he had previously suffered multiple severe ligament tears to his right knee
requiring surgeries on three [sic] earlier occasions in 2011, 2012, 2015 and 2016, most of
them performed by Mr Pécora, “head of the Knee Department of the University of São Paulo,
which is one of the Medical Centres certified by FIFA as one of the places with the necessary
excellence to attend football players who request specialised medical assistance”.
48.
In the context of the injury, the player explained that Al Hazem authorised his trip to Brazil
to undergo further examinations and consult with Mr Pécora, but only to later on engage
in a series of manoeuvres aiming at characterising his absence as illegitimate, imposing
fines, and trying to contrive a just cause to terminate the Contract. He made several
remarks on this topic, summarized as follows:
•
Al Hazem violated not only the principle of pacta sunt servanda, but also of “good
faith, party autonomy, freedom of contract, prohibition of abuse of right, etc.” He
alleged that his refusal to carry out his medical treatment in Saudi Arabia was the
only reason upon which Al Hazem based the termination, which does not constitute
a just cause;
•
the player vehemently denied having acted in bad faith, as he requested to travel to
Brazil to obtain a second opinion from his previous doctor. He claimed to have acted
in agreement with clause 7 par. 14 of the Contract, as well as with the FIFA Circular
no. 1171, which provides in its point 5.5. that “the Player has a right of a second
opinion by an independent medical specialist if he contests the opinion of the club’s
specialist. If there are still different opinions, the parties agree on accepting an
independent third opinion, which will be binding.” Likewise, the player pointed out that
Al Hazem never commented on his decision to bear the costs of his surgery in Brazil;
•
as to his allegedly unauthorised absence, the player recalled that it was undisputed
that his injury was of a severe nature, that he had a previous history of knee injuries
known by Al Hazem when he was hired, and that Al Hazem did not warn him in
advance that his decision to pursue medical treatment in Brazil could entail the
unilateral termination of the Contract. The player insisted that he was absent from
his workplace with the purpose undergo surgery, “which, per se, seems to be
reasonable just cause”, having departed shortly before the end of the season and Al
Hazem’s staff holidays, as well as the start of the Ramadan. His surgery was
performed on 18 April 2022 in Brazil and no reasonable justification whatsoever was
pg. 11
REF. FPSD-8496
provided by Al Hazem to request his immediate return to Saudi Arabia on 19 April
2022.
49.
Taking all the above into consideration, the player argued that being forced to receive a
certain type of treatment against his will and medical history was an abusive conduct of
Al Hazem, which would have given him a just cause to terminate the Contract. He also
referred to clause 12 par. 3 of the Contract, which forbids Al Hazem to terminate the
Contract based on an injury of the player sustained during a match or training.
50.
Finally, the player outlined that despite his default notice of 22 April 2022, Al Hazem did
not make any payments, but simply insisted on his return (25 April 2022) and terminated
the Contract unilaterally and without just cause (29 April 2022). He also added that Al
Hazem’s argument that it was entitled to terminate the Contract due to the relegation and
based on clause 12 par. 8 of the Contract could not be sustained as Al Hazem conducted
itself in bad faith and as such clause has an arbitrary nature, granting it only the right to
unilaterally terminate the Contract.
51.
Apart from opposing to the justice of the termination by Al Hazem, the player also argued
that the fines imposed by such club were groundless. He explained that the sanctions
were allegedly based on “disciplinary regulations” – not clearly indicated if issued by Al
Hazem itself of the Saudi Arabian Football Federation (SAFF) –, which were never provided
to the player.
52.
Furthermore, the player alleged that the imposition of sanctions neither respected the
due process, nor was it proportionate, justified or adequate; as well as it also violated
clause 8 par. 5 of the Contract and ignored the material circumstances of the case, in
particular the fact that at the moment of its imposition Al Hazem was in debt of the
amount of USD 100,000 towards the player (“exceptio non adimpleti contractus”).
53.
Consequently, he concluded that the deductions made by Al Hazem should be
disregarded and he should be entitled to the outstanding remuneration for the month of
April 2022 together with the compensation for breach of contract cf. art. 17 of the FIFA
RSTP.
54.
In particular, the player made the following request for relief:
“FIRST – To uphold in full the present claim;
SECOND – To order the Club to pay to the Player the outstanding default interest over
the third instalment of the signing-on fee, which remained outstanding between 31
December 2021 and 24 August 2022 in the amount of USD 3,300 plus default interest
at a rate of 5% annually as from 25 August 2022 until the effective date of payment;
THIRD – To order the Club to reimburse to the Player the amount unlawfully
pg. 12
REF. FPSD-8496
disciplinary sanction (fine) imposed by the former to the latter and amounting USD
8,182 plus default interest at a rate of 5% annually as from 1 May 2022 until the
effective date of payment;
FOURTH - To order the Club to pay to the Player the total amount of USD 1,109,086
due as compensation for the breach of the Contract, plus default interest at the rate
of 5% annually as from 30 August 2022 until the effective date of payment;
FIFTH – To impose a transfer ban on the Club prohibiting it from registering any new
players, either nationally or internationally, for 2 (two) entire and consecutive
registration periods;
AND SIXTH – To open the proceedings against the Club by notifying it without delay.”
b. Reply and counterclaim of Al Hazem
55.
On 23 January 2023, Al Hazem filed its reply to the claim of the player and lodged a
counterclaim against him.
56.
Al Hazem explained that, after its relegation, the player started pressuring the club to
terminate the Contract to avoid playing in the local second division. Al Hazem confirmed
that it did not object to transfer him back to Santos and negotiations were initiated
between all parties up until his knee injury when the negotiations were interrupted. After
the injury was confirmed, Al Hazem claimed that the player requested a second opinion,
which it authorised, while reminding him that such second opinion did not require a
consultation in person. Nevertheless, the player insisted on travelling to Brazil “using all
necessary tricks and lies to achieve his goal”.
57.
Al Hazem enclosed to its reply brief a screenshot of a conversation held between the
player and its director in the electronic application WhatsApp, in which authorisation is
given to the player to travel to Brazil with his family from 28 March to 4 April 2022 to get
a second opinion from his doctor. It also highlighted the clear position adopted by its
representative that “I hope you don’t need to make surgery. If you must need it, you must do
it here in Saudi Arabia”, to which the player replied “I don’t need a ticket back to Saudi Arabia
for my family. In case of return, I will return alone.” Accordingly, Al Hazem explained that it
was clear that the player was aware that he was not authorised to perform any surgery in
Brazil should return to Saudi Arabia, the failure of which left no alternative to the club
other than terminating the Contract on 29 April 2022.
58.
Al Hazem deemed to have had a just cause to terminate the Contract based on art. 14 of
the FIFA RSTP and on the abusive conduct of the player. In particular, it made the following
remarks on the topic:
•
“the player has decided before the injury to leave the club after concluding that the
pg. 13
REF. FPSD-8496
retrogradation to the lower league was inevitable. […] [S]ince the end of February
2022, the claimant (who is one of the players who played and lost matches during a
catastrophic sportive season) has pressed the club to terminate his contract
prematurely. To that purpose, he did everything possible to get a way to be
transferred to another club because he has categorically refused to play in the low
division. In that context, he has initiated the preliminary contact between AL Hazem
Club and Santos FC for a transfer during March 2022. AL Hazem Club didn’t object
and entered negotiation with Santos FC to finalize the transfer. After the injury, the
claimant didn’t change his decision to leave the club and tried by all ways to end his
relationship with the club”;
•
the player “acted with a high degree of bad faith during all the post injury period”. It
also points understands that the player “had no longer the desire to stay with the
club not only because the latter was going to play in the first league but also because
he did not appreciate the city of RASS which is a very beautiful city”; [he showed]
complete disrespect towards the club and the city by trying to minimize the city's
capacities and infrastructure to justify his refusal to carry out the surgery and
recovery in Saudi Arabia”;
•
the player also acted in bad faith in confirming to the club’s director that he
would return no Saudi Arabia on 4 April 2022, whereas he never had the
intention to do so. It underlined, in this regard, that “that the player’s counsel has
expressly stated in his email of 21 March 2022 (E-H-3) that: ‘The player intends to
return to Brazil as soon as possible with the exclusive purpose to obtain another
medical diagnosis of a doctor of his choice’. But after arriving to Brazil, all the
previous engagements were disrespected, and the player decided abusively without
the consent of the club to do the medical surgery as well as the recovery in Brazil”.
59.
As to the player’s margin of influence in deciding the type of medical treatment he should
undergo, Al Hazem stated that “It is important to remind that circular 1171 gives to the Player
the right to get a second opinion if he objects or rejects the first opinion but never allows him
to do a medical surgery and a post-surgery treatment outside the medical center of the club.
Also, article 7-14 of the employment contract expressly provides that the player ‘must allow
himself to be treated by a doctor / physiotherapist / chiropracted designated by the club’”.
Despite all its efforts to provide the player with the best medical treatment and its will to
compromise, the player unilaterally and in bad faith decided to stay in Brazil for surgery
and treatment, breaching the Contract.
60.
Under these circumstances, Al Hazem claimed that the fine imposed on 19 April 2022 was
perfectly justified, proportionate and in line with the disciplinary regulations, which were
provided to the player with the Contract, as stated in clause 7 par. 19 and 20. It additionally
underlined that its decision was properly communicated to the player and was not
appealed; thus, became final and binding.
pg. 14
REF. FPSD-8496
61.
Al Hazem indicated that there are no outstanding amounts towards the player, as the
deductions made were justified and the instalment due on 30 December 2021 in the
amount of USD 100,000 was paid 4 months before the submission of the player’s claim.
62.
Finally and due to its alleged just cause to terminate the Contract, Al Hazem lodged a
counterclaim against the player with the following request for relief: “We kindly ask the DRC
to dismiss the claim of the player and accept the counterclaim of the club by considering the
termination made by the club for just cause and consequently order the player Alison Lopes
FERREIRA to pay to AL Hazem Club a compensation equal to USD 1,109,086”, corresponding
to the residual value of the Contract.
c. Reply to the counterclaim by the player
63.
On 24 February 2022, the player submitted his reply to the counterclaim of Al Hazem and
challenged its argumentation as follows.
64.
Initially, the player stressed that by the time Al Hazem terminated the Contract, i.e., on 29
April 2022, the instalment of USD 100,000 due on 30 December 2021 was outstanding.
Even though such instalment was eventually paid, that only happened about 4 months
after the termination of the Contract. The player further added that when he injured
himself on 18 March 2022, such amount, corresponding to approximately 2 monthly
salaries, was due for almost 3 months. Thus, he argued that, had he had the intention to
terminate the Contract – as Al Hazem claims – he could have done so based on the
outstanding instalment, without the need to fabricate any further excuses. As such, Al
Hazem’s allegation of a termination plan by the player, executed in bad faith, could not
be sustained.
65.
Furthermore, as to circumstances concerning his injury, surgery, and the subsequent
termination of the Contract, he added inter alia the following:
•
He had obvious reasons to want to consult with the doctor who performed his last
surgeries. He in fact believed in good faith that Mr Pécora and Al Hazem’s doctor
could together decide on the best place to perform the surgery and the subsequent
treatment. Unfortunately, this is not what happened, as Al Hazem’s medical team
never contacted Mr Pécora with respect to the player’s health and never reacted to
his communication. In fact, the player highlighted that main doctor was on holidays,
but never indicated another person with whom Mr Pécora could communicate.
“Within this scenario and based upon the opinion of Prof. Dr. José Ricardo Pécora, the
Player decided for a medical surgery in Brazil. Nevertheless, the Player communicated it
to the Club, as well as his decision to financially afford it alone, despite of knowing that
such obligation – as general rule – rests on clubs.”
pg. 15
REF. FPSD-8496
•
there was no need for an immediate return to Saudi Arabia and such trip could even
cause serious risks to his health, as he had just been operated. Therefore, he
pursued his post-surgery treatment in Brazil. “Last but not least, it is fundamental to
dismiss all the regrettable assumptions addressed by the Club in its Counterclaim that
the Player disrespected its medical staff, as well as the population of the city of Ar Rass.
Evidently, it never occurred, that is, the Player has always had a deep respect for both”.
The player further pointed out the inconvenience of being operated in Riyadh, Saudi
Arabia and continuing his treatment in another city 400km away (i.e., Ar Rass), while
in Brazil he would be operated and treated in the same city. Based on the foregoing,
the player insisted he “never premeditated any medical surgery or treatment in Brazil,
it simply occurred due to the circumstances referred above”.
•
Al Hazem never disputed or challenged any of the arguments provided by him
regarding his preference to be operated and treated in Brazil, and the lack of need
to immediately return to Saudi Arabia. He once again referred to the FIFA Circular
no. 1171 and to his right to obtain a second opinion. He pointed out that after an
initial disagreement Al Hazem allowed him to travel to Brazil. The fact that Mr Pécora
was afterwards not able to contact Al Hazem’s doctor and discuss treatment as well
as the urgency of his surgery justified his decision to be operated in Brazil and follow
his treatment there, which were duly communicated. He also underlined his
decision to bear the costs of such surgery and treatment, also communicated to Al
Hazem, to no avail.
66.
In conclusion, the player deemed that Al Hazem acted in bad faith, provoking the
termination of the Contract to adapt to its reduced foreign players quota, in view of the
relegation. Al Hazem was already negotiating his return to Santos and after his injury it
began fabricating justifications related to his health treatment.
67.
By the same token, he asserted that Al Hazem failed to respect the ultima ratio nature of
the termination. In his opinion, it was clear from the Termination Letter that the reason
for the termination was the refusal of the player to return to Saudi Arabia. However, not
only the player’s decision to stay in Brazil was justified by medical reasons, but also by Al
Hazem’s intransigent attitude as well as the fact that a considerable amount of
remuneration was outstanding since December 2021. No justification whatsoever was
given by Al Hazem as to the failure to communicate with Mr Pécora or to the insistence
on his immediate return to Saudi Arabia after surgery. The player explained that, since his
surgery, he has not yet been able to play again, and his possible return is foreseen for
April 2023 only. The player also recalled the longstanding jurisprudence of the Dispute
Resolution Chamber (DRC), as per which an injury is no just cause for the termination of
a contract. In his view, the allegedly unjustified absence was not only a short one, but also
justified by the impossibility (and lack of purpose) to take a long-haul flight after having
undergone a knee surgery.
pg. 16
REF. FPSD-8496
68.
In parallel, the player reiterated that the fine imposed on him was neither justified nor
proportionate. He pointed out that the actual fine imposed on him amounted to 45% of
his salary, and not 15% as mentioned by Al Hazem, as he was paid an amount of USD
29,999.75 as April 2022 salary, in lieu of USD 54,545. The player highlighted that Al Hazem
relied on clause 7 par. 19 and 20 of the Contract, as well as on the “Typical List of Penalties
and Sanction to the Clubs that apply Professionalism”, which as per the player were never
provided to him. Al Hazem also mentioned the existence of so-called “disciplinary
regulations,” which were not specified or provided to the player or to FIFA. “By failing to
submit a copy of the internal regulations to the FIFA DRC, the Club fails its burden of proof to
prove the grounds or existence of such fines and thus the fines imposed must be dismissed in
their entirety”. Furthermore, the player stressed that the imposition of such fine is in
violation of clause 8 par. 5 of the Contract, which states that “The Club shall not impose a
fine on the Player if the Club has not complied with its own financial obligations towards the
Player under the terms and conditions of this Contract.”
69.
Based on the foregoing, the player insisted that Al Hazem had no just cause to unilaterally
terminate his Contract, requested FIFA to entirely reject its counterclaim and amended
his initial request for relief as follows:
“FIRST – To reject the Counterclaim in full;
SECOND – uphold the Statement of Claim in full;
THIRD – To order the Club to pay to the Player the outstanding default interest over the
third instalment of the signing-on fee, which remained outstanding between 31
December 2021 and 24 August 2022 in the amount of USD 3,300 plus default interest at
a rate of 5% annually as from 25 August 2022 until the effective date of payment;
FOURTH – To order the Club to reimburse to the Player the amount unlawfully disciplinary
sanction (fine) imposed by the former to the latter and amounting USD 24,545 plus
default interest at a rate of 5% annually as from 1 May 2022 until the effective date of
payment;
FIFTH – To order the Club to pay to the Player the total amount of USD 1,109,086 due as
final compensation for the breach of the Contract plus default interest at the rate of 5%
annually as from 30 August 2022 until the effective date of payment; and
SIXTH – To impose transfer ban on the Club prohibiting it from registering any new
players, either national or internationally, for two entire and consecutive registration
periods”.
pg. 17
REF. FPSD-8496
d. Final comments of Al Hazem
70.
O 28 February 2023, Al Hazem submitted its final comments on this matter. Accordingly,
it echoed its previous argumentation and insisted on two specific points, namely: (i) the
player could not have legally terminated the Contract based on art. 14 or 14bis of the FIFA
RSTP; and (ii) the player’s refusal to undergo surgery and treatment in Saudi Arabia gave
it a just cause to terminate the Contract. In particular, Al Hazem indicated that the
outstanding instalment of December 2021 does not exceed the amount of 2 monthly
salaries, and that Circular 1171 gives the player the right to obtain a second opinion, but
not to decide on his own to undergo surgery wherever he wants.
71.
Finally, Al Hazem requested the FIFA DRC to “dismiss the claim of the player and accept the
counterclaim of the club by considering the termination made by the club for just cause and
consequently order the player Alison Lopes FERREIRA and jointly Santos Club to pay to AL
Hazem Club a compensation equal to USD 1,109,086”.
e. Position of Santos
72.
On 28 February 2023 and due to the possibility of being deemed jointly liable for the
payment of the compensation in accordance with art. 17, par. 4 of the FIFA RSTP, Santos
was called as a party to the proceedings and was invited by the FIFA general secretariat to
submit its position to the file (cf. art. 9 par. 4 of the Procedural Rules Governing the
Football Tribunal).
73.
On 5 April 2023, Santos filed its comments on the counterclaim of Al Hazem. In doing so,
it firstly indicated that Al Hazem never paid the second instalment of the transfer fee in
the amount of USD 350,000, which led it to lodge a claim at FIFA. Furthermore, due to Al
Hazem’s lack of interest in keeping the player in the squad, Santos confirmed having
started negotiations with and Al Hazem for the player’s return. In this case, the parties
agreed that Santos would withdraw the claim lodged at FIFA and give Al Hazem total
discharge of the second instalment.
74.
According to Santos, it “sent an e-mail to Al Hazem with an addendum to the Transfer
Agreement by means of which Santos discharged Al Hazem from paying the second installment
of the transfer fee. Also, it was forwarded a transfer agreement for TMS purposes, so that
Santos could request the Player’s ITC. (Exhibit 02) However, on 18 March 2022, the Player
suffered an injury on his left knee. Due to that, and because Al Hazem had never answered
Santos’ e-mail sent on 18 March 2022, Santos sent another e-mail to Al Hazem, on 22 March
2022, in which it was informed that Santos had refrained from moving on with the agreement.
(Exhibit 03) In addition, Santos kept its claim against Al Hazem which resulted in the latter being
condemned to pay USD 385,000 (three hundred and eighty-five thousand dollars) to Santos.
The 2022 season ended and at the beginning of the 2023 season, Santos started to plan its
squad. At that time, Santos was aware that the Player was recovered from his injury and that
he had his employment agreement unilaterally terminated by Al Hazem, on 29 April 2022.
pg. 18
REF. FPSD-8496
Based on that, on 9 February 2023, Santos and Player entered into a new employment
agreement, almost ten (10) months after the termination of the employment agreement
between Al Hazem and the Player. Therefore, based on the facts hereinabove, Al Hazem’s
request for Santos to be considered joint and several liable for any compensation to be paid
by the Player should not be admitted”.
75.
Given the above, Santos deemed that it had no influence whatsoever in the termination
of Contract. Furthermore, it outlined that the joint liability would be only applicable to
cases where the player terminated the contract without just cause – which was not true
in the case at hand.
76.
Alternatively, in case the DRC deemed that Al Hazem had a just cause to terminate the
Contract, Santos disputed the quantum of compensation, as such amount in fact
represents the amount saved by and Al Hazem by terminating the Contract with the
player. In contrast, it deemed that a more adequate criteria would be the non-amortised
transfer fee of USD 700,000, which would amount to USD 445,454.52 at the time the
Contract was terminated.
77.
Santos submited the following request for relief:
“i. To declare that Santos shall not be considered in any way jointly and severally liable
for payment of compensation to Al Hazem in case the Player is found liable for the
termination of his employment agreement without just cause;
ii. To not impose sporting sanctions against Santos;
iii. Alternatively, in case Santos is found jointly and severally liable for payment of
compensation to Al Hazem that the compensation be fixed at USD 445.454,52 (four
hundred and forty-five thousand four hundred and fifty-four dollars and fifty-two cents),
as explained in chapter III above.”
IV. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
78.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 7 December 2022 and
submitted for decision on 11 May 2023. Taking into account the wording of art. 34 of the
March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter:
the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
pg. 19
REF. FPSD-8496
79.
Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par.
1 lit. b) of the FIFA RSTP (March 2022 edition), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Brazilian player and a Saudi club, with
the intervention of a Brazilian club.
80.
Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par.
1 and 2 of the FIFA RSTP (March 2023 edition), and considering that the present claim was
lodged on 7 December 2022, the October 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
81.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by
or within the Transfer Matching System (TMS).
c. Merits of the dispute
82.
Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments, and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
83.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact it pertains to a claim for breach of contract lodged by
the player against Al Hazem and a counterclaim (as amended) lodged by the latter against
the player and his new club, Santos.
84.
In particular, the DRC observed that Al Hazem terminated the Contract on 29 April 2022
due to the player’s alleged multiples breaches of his obligations and unjustified absence
following his knee injury. The parties dispute the justice of such termination, which shall
be assessed by the Chamber in combination with the consequences that follow.
pg. 20
REF. FPSD-8496
85.
As departure point, the DRC acknowledged that the following facts remained undisputed
and were particularly relevant to the assessment of the matter:
Date
3 August 2021
30 December 2021
18 March 2022
21 March 2022
27 March 2022
Between 4 and 6 April
2022
9 April 2022
12 April 2022
18 April 2022
19 April 2022
22 April 2022
29 April 2022
24 August 2022
31 May 2022
86.
Event
The player and Al Hazem entered into an employment relationship
valid as from 1 August 2021 until 30 June 2023.
The instalment of the sign-on fee of USD 100,000 became overdue.
The player suffered a serious injury, which required surgery.
The player and Al Hazem started constant communication
regarding the player’s surgery and treatment.
Al Hazem authorized the player to travel to Brazil to get a second
opinion on his injury and issued the flight tickets for himself and
his family leaving on 30 March 2022 and returning to KSA on 5
April 2022.
The player and Al Hazem exchanged messages regarding inter alia
medical arrangements and the whereabouts of the surgery. Al
Hazem requested the player to return to KSA by the latest on 9
April 2022.
The player informed Al Hazem that he would not return to KSA and
would undergo surgery in Brazil on 18 April 2022, at his own
expenses. He furthermore recalled that part of his sign-on fee was
outstanding and requested payment (USD 100,000).
Al Hazem insisted that the player should return to KSA and avail
himself at a clinic for surgery on 16 April 2022. The player
reiterated his position regarding the treatment in Brazil.
The player was operated in Brazil, with no authorization by Al
Hazem.
Al Hazem imposed the player a fine of 15% of his April 2022 salary
for unauthorised absence. Subsequently, the parties discussed the
validity of such fine.
The player inter alia put Al Hazem in default for payment of the
outstanding sign-on fee (USD 100,000).
Al Hazem imposed the player a fine of 30% of his April 2022 salary.
On the same date, Al Hazem unilaterally terminated the Contract
and paid him the amount of USD 29,999.75 as “April 2022 salary”.
Al Hazem paid the player the outstanding USD 100,000.
Official end of the 2021/2022 season in KSA. Al Hazem’s team was
relegated and forced to reduce its foreign player quota.
Within this context, the Chamber took due consideration that the parties’ main
disagreement revolves the player’s right to decide upon his medical treatments. Indeed,
the DRC deemed that the issues to be tackled were mainly (i) the player’s surgery itself;
and (ii) his subsequent absence.
pg. 21
REF. FPSD-8496
The surgery
87.
The DRC firstly noticed that Al Hazem deemed that the player breached the Contract when
he decided alone to have his surgery and treatment in Brazil, while Al Hazem claims it only
allowed him to travel to obtain a second opinion.
88.
In this respect, the Chamber recalled that clause 7 par. 14 of the Contract establishes the
following: “The player shall allow himself to be treated by a doctor / physiotherapist /
chiropractor designated by the club. Nevertheless, the player shall have the right to a second
opinion by an independent medical specialist of his choice if he contests the opinion of the
club’s doctor / physiotherapist / chiropractor. If there are still different opinions, the player and
the club agree on accepting an independent third opinion (e.g. from a FIFA Medical Centre of
Excellence), which will be binding on both parties. The costs of any such third independent
opinion will be covered by the club.”
89.
As per the above, the DRC deemed that the player was contractually entitled to seek a
second opinion on his injury and Al Hazem indeed authorised his departure to Brazil on
30 March 2022 with such purpose. The Chamber underlined that, in its correspondence
of 22 March 2022, Al Hazem stated that (a) it did not object to the player having a second
opinion, (b) it would reschedule the surgery intervention until he got his second opinion
and (c) requested him to provide the contact of his doctor in Brazil. On the same letter
though, the club added that “after the second opinion, the player will get all the medical
treatments in Saudi Arabia under the control of the club’s medical staff and no medical act
whatsoever will be made outside Saudi Arabia.”
90.
The Chamber was observant, however, that the disagreement between the parties started
when Mr Pécora could not, apparently, communicate with Al Hazem’s doctor in Saudi
Arabia. In this respect, the DRC outlined that (i) it was confessed by Al Hazem that its
doctor was on holidays and that the email of Mr Pécora was not forwarded to the club
management; (ii) no evidence of the notification of the contact of a second doctor to
discuss the player’s medical situation was provided to the player or Mr Pécora; (iii) the
need for surgery also seems to have become undisputed between the parties, as Mr
Pécora had recommended it and surgery in Saudi Arabia had already been scheduled by
Al Hazem; and (iv) the player provided evidence of the need for surgery.
91.
In parallel, the Chamber deemed noteworthy that, while the hypothesis that the player
already intended to undergo surgery in Brazil when he left Saudi Arabia could only be
speculated and was not confirmed, the evidence on file showed that Al Hazem (a) did not
react to the second opinion, (b) did not address the reasons given by the player to undergo
surgery in Brazil or his offer to fully bear its costs, and (c) that Al Hazem started demanding
the player’s immediate return to Saudi Arabia, while being aware of the fact that he had
just been operated.
pg. 22
REF. FPSD-8496
92.
At this point, the DRC was also firm to determine that any person has the right not to be
submitted to medical interventions on their body without consent. It followed, in the
Chamber’s view, that while a player cannot demand from a club that it bears the expenses
of any type of treatment, he has the right to determine the circumstances of any medical
intervention. Indeed, the DRC wished to establish a player’s physical integrity is the
cornerstone of footballing activities and inherent to his right to health, therefore could
not be unilaterally laid down by a club. On the contrary, a player shall be entitled to decide
on his medical care, provided that he owns any consequences that may arise from his
choices and, in particular, bears the (additional) costs involved.
93.
In casu, the DRC underlined that the abovementioned was precisely what happened as
the player has stated his will to pay for his surgery and treatment in Brazil and indeed, did
not claim such amount in his claim. Likewise, the DRC considered that no evidence was
advanced by Al Hazem in the sense that the second opinion was even discussed in order
to request a 3rd binding one, insofar as no reaction from Al Hazem’s medical staff was ever
sent to the player and/or to Mr Pécora.
94.
Taking all the above into consideration, the Chamber decided that the fact that the player
decided to undergo surgery in Brazil – despite being potentially read as a breach of Al
Hazem’s order – could not give cause to the termination of the Contract.
The alleged unjustified absence
95.
In continuation, the DRC observed that the Termination Letter was also grounded on the
unjustified absence of the player following his departure to Brazil. As such, the Chamber
deemed that its task was also to establish whether such absense constituted a breach of
contract and, if affirmative, whether the breach was severe enough to justify the
termination of the Contract as an ultima ratio measure.
96.
With the above in mind, the Chamber firstly addressed the player’s argumentation
regarding his outstanding remuneration for the period he was absent. Accordingly, a
significant part of his remuneration was outstanding since the beginning of his absence
which allegedly counterbalanced the scale and excused him of the performance of any
contractual obligation.
97.
At this point, the DRC acknowledged that, whereas the player was entitled to a fixed
payment of USD 100,000 on 30 December 2021, such amount was only delivered on 24
August 2022, i.e., almost 4 months after the termination of the Contract and almost 8
months after he respective due date. As such, the Chamber deemed that, in theory, the
principle of exceptio non adimpleti contractus could be raised in the case – as claimed by
the player. However, the Chamber decided that such argument was formally addressed
by the player for the first time only on 9 April 2022, when the player’s prolonged stay in
Brazil had already become an issue between the parties.
pg. 23
REF. FPSD-8496
98.
Therefore, while constituting undisputed evidence that Al Hazem was not fully complying
with its financial obligations, the DRC decided that it does not per se justify the player’s
refusal to return to Saudi Arabia. Consequently, the Chamber deemed that his position in
this respect should be set aside, entailing that he could not be deemed “excused” from
his services (even if that meant participating in physical rehabilitation) due to the
outstanding remuneration.
99.
Having established the above, the DRC once again recalled the timeline of the case and
highlighted, in particular, the following events:
•
On 18 March 2022, the player suffered the injury;
•
On 18 April 2022, the player underwent surgery in Brazil;
•
On 19 April 2022, the club imposed a fine on the player (15% of his salary);
•
On 29 April 2022, the club imposed a second fine on the player (30% of his salary)
and, on the same date, terminated the Contract; and
•
In May 2022, the 2021/2022 season in Saudi Arabia officially ended and Al Hazem
was relegated.
100. In view of the foregoing, the Chamber found it decisive that:
• the absence of the player, especially after the surgery, could be justified by the fact
that he had been recently operated, hence the trip was not medically recommended
and represented a risk to his physical integrity;
• there was no evidence on file that a due disciplinary process was ever opened
against the player, culminating in the imposition of sanctions and, ultimately, in the
termination of the Contract;
• even if existing, the player seems to have never been summoned to participate on
the disciplinary proceedings;
• the imposition of a fine during the existence of outstanding salaries and the
disrespect of the due process violated the stipulations in clause 8 par. 5 and 6 of the
Contract. Furthermore, no evidence has been advanced by Al Hazem to
demonstrate that the player was indeed provided with and/or informed of the
applicable disciplinary regulations; and
• the player’s absence for only a few days, under the given circumstances, does not
justify the abrupt deduction of 45% in total of the player’s salary, let alone the
termination of the Contract. In contrast, as per the DRC’s established jurisprudence,
pg. 24
REF. FPSD-8496
an injury cannot be considered as a just cause to terminate a contract – which is
further confirmed by the parties’ mutual agreement to this end as reflected by
clause 12 par. 3 of the Contract.
101. On top of the above, the Chamber underscored that the club’s insistence on the player’s
return to Saudi Arabia after undergoing knee surgery could not be justified by any medical
or, more relevantly, sporting reason. Contrario sensu, the DRC considered that (i) the fact
mentioned by the player that the season was almost over and Al Hazem would need to
reduce its foreign quota was also not disputed; and (ii) the constant reminders by Al
Hazem that the player would be considered in breach while mentioning the need to
reduce its foreign player quota after the relegation, indicate rather its intention not to
keep an injured foreign player as part of its squad instead of a true interest in the player’s
services. The same is also supported by the fact that, even before the player’s injury, Al
Hazem was already negotiating the player’s transfer with Santos.
102. Therefore, the Chamber was not convinced that the termination by Al Hazem was indeed
an ultima ratio measure in line with its jurisprudence.
Conclusion
103. Having carefully assessed the evidence on file and bearing in mind the particularities of
the case, the DRC decided that Al Hazem did not have a just cause to terminate the
Contract on 29 April 2022.
104. It shall be liable to endure the consequences that follow.
ii. Consequences
105. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by Al
Hazem.
106. Firstly, the DRC recalled its position as to the illegality of the fine imposed by the club over
the remuneration of the player (cf. §100, supra). In this respect, the Chamber observed
that the documentation provided by both parties indicate that only USD 29,999.75 were
paid as April 2022 salary, in lieu of USD 54,545. Therefore, the DRC decided that the player
should be entitled to the balance of USD 24,545 net plus interest of 5% p.a. as from the
date of the termination of the Contract (i.e., 29 April 2022).
107. Secondly, the DRC pointed out to the player’s request for interest over the instalment of
30 December 2021. Nevertheless, while considering the specificities of the case and the
fact that the amount was entirely paid before the claim was lodged by the player, the
Chamber decided that this part of the claim should be rejected.
pg. 25
REF. FPSD-8496
108. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for the law
of the country concerned, the specificity of sport and further objective criteria, including
in particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
109. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of
which the parties had beforehand agreed upon an amount of compensation payable by
the contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
110. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
111. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 1,109,086 net serves as the basis for the determination
of the amount of compensation for breach of contract, broken down as follows:
•
USD 300,000 net as the remaining instalments of the fixed payments due in
August, October and December 2022 à USD 100,000 each;
•
USD 109,090 net as the salaries from May until June 2022 à USD 54,545 each; and
•
USD 699,996 net as the salaries from July 2022 until June 2023 à USD 58,333 each.
112. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
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REF. FPSD-8496
113. Indeed, the player found employment with Santos. In accordance with the pertinent
employment contract, the player was entitled to BRL 100,000 per month. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of BRL
464,285.71 for the overlapping period (i.e., pro rata for February 2023, plus the salaries
from March until June 2023), corresponding to USD 89,141.50.
114. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination did not took place due to said reason (in that the club, and not the player,
terminated the contract), and therefore decided that the player shall not be entitled to
additional compensation.
115. Consequently, on account of all the abovementioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD
1,109,944.50 net to the player (i.e., USD 1,109,086 minus USD 89,141.50), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
116. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of termination of the Contract until the
date of effective payment.
117. In conclusion, the claim of the player was partially accepted and the counterclaim of Al
Hazem fully rejected.
iii. Compliance with monetary decisions
118. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
119. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
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REF. FPSD-8496
120. Therefore, bearing in mind the above, the DRC decided that the Al Hazem must pay the
full amount due (including all applicable interest) to the player within 45 days of
notification of the decision, failing which, at the request of the player, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become immediately
effective on the Al Hazem in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
121. The Al Hazem shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
122. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
d. Costs
123. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were
to be imposed on the parties.
124. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
125. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8496
V. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Alison Ferreira Lopes, is partially accepted.
2.
The Respondent / Counterclaimant, Al Hazem, must pay to the Claimant / Counter-Respondent
the following amount(s):
- USD 24,545 net as outstanding remuneration plus 5% interest p.a. as from 29 April 2022
until the date of effective payment; and
- USD 1,019,944.50 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 29 April 2022 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counterclaimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision, the
following consequences shall apply:
1. The Respondent / Counterclaimant shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum duration of the
ban shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not made by the end of
the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status
and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-8496
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 30